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"It is high time that a writ court undertakes the exercise of considering, whether the Exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman’s fundamental right to sexual autonomy subject to the whims of her husband."

Gujrat High Court on December 14, 2021, issued notice to the Attorney General of India through the Secretary, Ministry of Law and Justice, and to the State of Gujarat on a plea wherein the constitutional validity of Exception-2 to Section 375 of the Indian Penal Code had been questioned.

(Exception-2 to Section 375 provides that when a man commits sexual intercourse or the acts mentioned in (a) to (d) on his own wife, it is not ‘rape’.)

The Bench of Justices J.B.Pardiwala and Niral.R.Mehta noted that "What has been highlighted before us in public interest is something which is very, very important."

The plea, filed by Salil Thakore, a practicing advocate and a part-time lecturer at the M.S.University, Vadodara, had stated that by virtue of the exception 2 of the Section 375, the protection granted by the law to a woman against forcible sexual intercourse is withdrawn and the wife is forced to surrender her bodily integrity, sexual autonomy (her right to say ‘No’) and her right to bodily privacy to the husband.

Petitioner had asserted that due to this exception being there, when a man forces his wife to have sexual intercourse with him against her will or without her consent (or by obtaining her consent by putting her in fear of death or hurt) or forces her to commit any of the other acts mentioned in (a) to (d) ‘with him or any other person’, such acts will fall outside the definition of ‘rape’ under law and consequently, the husband cannot be punished for rape.

He had further submitted that Exception-2 violates such fundamental and inalienable rights which inhere in every human being by virtue of their existence and which have been recognized by the Supreme Court of India. 

He had listed these rights in his plea which include:

• The right to live with dignity and the right to fair, dignified and humane treatment;
• The right to personal liberty;
• The right to sexual autonomy i.e. the right to decide whether and when to engage in sexual activity;
• The right to reproductive choices (including the right to not procreate) (because the act subjects the woman to the risk of pregnancy against her will);
• The right to privacy;
• The right to not be subjected to confinement (which flows from the right to free movement), etc.

The petitioner had stressed that the Constitution of India has not created or conferred these rights but has recognized, guaranteed and protected what are inalienable inherent human rights.

He had argued that five more aggravated forms of ‘rape’ as defined under sub-clauses (h), (j), (l), (m) and (n) of Section 376(2) that are subjected to a higher punishment, are actually capable of being committed by a man on his wife.

He had further contended that because of the exception carved out in Exception 2 to Section 375, the husband escapes punishment under Section 376(2). He had added that consequently, the law totally excludes from the offence of rape some gruesome acts when they are committed by a husband on his wife.

The Court's attention was also drawn towards the historical origin and the doctrine behind the exception carved out for marital rape.

The plea stated that many centuries ago, in England 'Doctrine of Coverture' was developed as a common law principle according to which the woman lost her separate existence and was regarded as the property of and subordinate to her husband.

The petitioner averred that the aforesaid doctrine is incompatible with the Indian Constitution which treats women as equal to men and considers marriage as an association of equals and not as a fiefdom of a husband over his wife.

He had added that In India, a married woman has an independent existence and has her own legal rights. She is not subordinate to the husband in any respect whatsoever.

However, despite taking note of petitioner's contentions, the high court noted that the principles which the Supreme Court has evolved need to kept in mind while entertaining a writ-application filed in public interest.

The Apex Court has ruled in Guruvayoor Devaswom Managing Committee and another vs. C.K.Rajan and others, reported in (2003) 7 SCC 546 that "Ordinarily, the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or a statutory rule.”

Accordingly, though pointing out that the legislative policy decision should not be interfered lightly by the Courts, the High Court decided to examine the issue. 

Issuing the notice, the Court stated, "There are many other larger issues raised in the present litigation which needs to be considered in details."

Cause Title: Jaideep Bhanushankar Verma vs UOI